Citation and commencement

1.-(1) These Regulations may be cited as the Merchant Shipping (Working Time: Inland Waterways) (Amendment) Regulations 2017.

(2) These Regulations come into force on 5th January 2018.

Amendment of the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003

2.  The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003(4) are amended as follows.

3.-(1) In regulation 2(1) (interpretation) at the appropriate places insert-

""free health assessment" means a health assessment which is free of charge to the worker to whom it relates;";

""passenger" means any person carried in a vessel other than-

""passenger ship" means a vessel carrying more than 12 passengers;";

""pleasure vessel" means-

where, in the case of any vessel referred to in paragraph (a) or (b), no other payments are made by or on behalf of users of the vessel, other than by the owner; and in this definition "immediate family" means, in relation to an individual, the spouse or civil partner of the individual, and a relative of the individual or the individual's spouse or civil partner; and "relative" means brother, sister, ancestor or lineal descendant;;";

""reference period" means-

""rest day" means an uninterrupted rest period of 24 hours which the worker spends in a place of the worker's own choosing;";

""shift work" means any method of organising work in shifts whereby workers succeed each other at the same workstations according to a certain pattern, including a rotating pattern, and which may be continuous or discontinuous, entailing the need for workers to work at different times over a given period of days or weeks;";

""shift worker" means any worker whose work involves shift work;";

""work schedule" means a document containing the planned working days and rest days which is communicated to the worker in advance by the employer;";

""working day" means any 24 hour period that includes working time;";

""workstation" means any place where the worker carries out the worker's duties.".

(2) For the definition of "night time", substitute-

""night time" means the period between 11 p.m. and 6 a.m.;".

(3) For the definition of "worker", substitute-

""worker" means a person employed (or, where the employment has ceased, who was employed) as a member of the travelling personnel of a ship to which these Regulations apply by an undertaking which operates services for passengers or goods but does not include a person who-

(4) For "workforce agreeement", substitute "workforce agreement".

(5) In the definition of "working time", in sub-paragraph (a), after "period" insert ", including overtime,".

4.  Omit regulation 2(2).

5.  For regulation 3 (application), substitute-

"3.-(1) These Regulations apply to any ship which-

(a)ordinarily operates in, and does not ordinarily go beyond the limits of waters of category A, B, C or D (as categorised in Merchant Shipping Notice MSN 1837(M), Amendment 1), and

(b)is not a pleasure vessel.

(2) Regulations 6, 6A, 6D, 10, 10A, 10B and 15A do not apply to workers under the age of 18.".

6.  At the end of regulation 4(d), insert-

"(e)in regulation 19(2)(b) for the word "settlement" substitute "compromise";

(f)in regulation 19(3) for the word "settlement" substitute "compromise".".

7.-(1) Omit regulation 5 (general).

(2) After regulation 12 omit the heading "Part 3 Exceptions".

(3) After regulation 15 omit the heading "Part 4 Miscellaneous".

8.  For regulation 6 (maximum weekly working time), substitute-

"Maximum daily working time

6.  Subject to regulation 15A, an employer shall ensure that a worker's working time shall not exceed 14 hours in any 24 hour period.

Maximum weekly working time

6A.  Subject to regulation 15A, an employer shall ensure that a worker's working time shall not exceed 84 hours in any seven day period.

Maximum annual working time

6B.-(1) Subject to paragraph (2), an employer shall ensure that a worker's working time shall not exceed 2,304 hours within 12 months.

(2) Where the duration of a worker's employment relationship is less than 12 months, paragraph (1) shall not apply and a worker's maximum working time shall be that proportion of 2,304 hours that the employment relationship bears to 12 months.

Maximum average weekly working time

6C.-(1) A worker's working time shall not exceed an average of 48 hours for any seven day period.

(2) For the purposes of this regulation, a worker's average working time for each seven days during the reference period shall be determined according to the following formula-

(3) In paragraph (2), "excluded days" means-

(a)days comprised in any period of annual leave taken by the worker in exercise of the worker's entitlement under regulation 11 or 11A;

(b)in so far as it is not comprised in any period of annual leave in accordance with sub-paragraph (a), any day which is a bank holiday in any part of the United Kingdom under the Banking and Financial Dealings Act 1971(5);

(c)days comprised in any period of sick leave taken by the worker; and

(d)any period of maternity, paternity, adoption or parental leave taken by the worker.

Maximum average weekly working time where there are more working days than rest days

6D.  Subject to regulation 15A, where, according to the work schedule, there are more working days than rest days, an employer shall ensure that a worker's average weekly working time shall not exceed 72 hours over a four month period.".

9.  For regulation 7 (health assessment and transfer of night workers to day work), substitute-

"Health assessments

7.-(1) A worker who so requests shall be entitled to an annual free health assessment.

(2) During the assessment referred to in paragraph (1), particular attention shall be paid to identifying symptoms or conditions which could be as a result of work on board with minimum daily rest periods or rest days.

(3) No person shall disclose an assessment made for the purposes of this regulation to any person other than the worker to whom it relates, unless-

(a)the worker has given consent in writing to the disclosure, or

(b)the disclosure is confined to a statement that the assessment shows the worker to be fit.

Health assessments for night workers

7A.-(1) An employer shall-

(a)not assign a worker to work which is to be undertaken during periods such that the worker will become a night worker unless-

(i)the employer has ensured that the worker will have the opportunity of a free health assessment before that worker takes up the assignment; or

(ii)the worker had a free health assessment before being assigned to work to be undertaken during such periods on an earlier occasion, and the employer has no reason to believe that the assessment is no longer valid, and

(b)ensure that each night worker has the opportunity of a free health assessment at regular intervals of whatever duration may be appropriate in the night worker's case.

(2) Regulation 7(3) shall apply to free health assessments undertaken for the purposes of this regulation.

Transfer of night workers to day work

7B.-(1) Where-

(a)a registered medical practitioner has advised an employer that a worker is suffering from health problems which the practitioner considers to be connected with the fact that the worker performs night work, and

(b)it is possible for the employer to transfer the worker to work-

(i)to which the worker is suited, and

(ii)which is to be undertaken during periods such that the worker will cease to be a night worker,

the employer shall transfer the worker accordingly.

Length of night work

7C.  An employer shall not require a worker to do more than 42 hours of night work during any seven day period.

Safety and health protection for night and shift workers

7D.-(1) Night workers and shift workers shall have safety and health protection appropriate to the nature of their work and such protection shall take account of guidance in section 8 of Merchant Shipping Notice MSN 1876(M).

(2) Protection and prevention services or facilities with regard to the safety and health of night and shift workers shall be equivalent to those applicable to other workers and be available at all times.".

10.  In regulation 8 (pattern of work), after "monotonous" insert "or at a predetermined work-rate".

11.  For regulation 9 (records), substitute-

"9.-(1) In the case of each worker, the employer shall keep records which are adequate to verify compliance with regulations 6, 6A, 6B, 6C(1), 6D, 7C, 10(1) and (3), 10B, 11(1) to (3), 11A, 14A(3) and 15A(2) to (4).

(2) Those records shall be available on board a ship until at least the end of the reference period.

(3) Those records shall contain the following minimum information-

(a)the name of the ship;

(b)the name of the worker;

(c)the name of the master;

(d)the date to which the record relates;

(e)whether a day was a working day or a rest day; and

(f)the beginning and end of the daily working or rest periods.

(4) The records shall be examined and endorsed jointly by the employer and the worker at an appropriate interval no later than by the end of the following month to which the records relate.

(5) Once endorsed, a copy of the endorsed records shall be given by the employer to the worker to whom they relate and that worker shall keep those records with them for one year.".

12.-(1) Regulation 10 (rest periods) is amended as follows.

(2) In paragraph (1), omit the words "Subject to paragraph (4),".

(3) For paragraph (3), substitute-

"(3) The rest periods referred to in paragraph (2) shall not be less than-

(a)10 hours in each 24 hour period, of which at least six hours are uninterrupted; and

(b)84 hours in any seven day period.".

(4) Omit paragraph (4).

13.  After regulation 10 (rest periods), insert-

"Rest breaks

10A.-(1) A worker whose daily working time exceeds six hours is entitled to a rest break.

(2) The details of the rest break to which the worker is entitled under paragraph (1), including its duration and the terms on which it is granted, shall be in accordance with any provisions contained in a collective agreement or a workforce agreement.

(3) Subject to the provisions of any applicable collective agreement or workforce agreement, the rest break is an uninterrupted period of not less than 20 minutes and the worker is entitled to spend it away from the worker's workstation if the worker has one.

Working days and rest days

10B.-(1) This regulation is subject to regulation 15A.

(2) An employer shall not require a worker to work more than 31 days consecutively.

(3) After a worker has worked a number of consecutive working days, the employer shall immediately allow the worker to take a minimum number of consecutive rest days calculated in accordance with paragraph (4).

(4) The minimum number of consecutive rest days which must immediately follow the consecutive working days shall be calculated as follows-

(a)for the 1st to the 10th consecutive working day: 0.2 rest days per consecutive working day;

(b)for the 11th to the 20th consecutive working day: 0.3 rest days per consecutive working day; and

(c)for the 21st to the 31st consecutive working day: 0.4 days per consecutive working day.

(5) Partial days resulting from the calculation under paragraph (4) shall be added to the minimum number of consecutive rest days and granted only as full days.

(6) Paragraphs (7) and (8) apply where, according to the work schedule, the number of working days is no more than the number of rest days.

(7) In addition to the minimum number of immediate consecutive rest days calculated in accordance with paragraph (4), the employer shall allow the worker to take a number of rest days equal to the number of working days worked less the rest days the worker became immediately entitled to under paragraph (4).

(8) The worker shall be entitled to take the rest days referred to in paragraph (7) during the reference period.".

14.  In regulation 11(1) (entitlement to annual leave and payment for leave), after "four weeks' annual leave" insert "in each leave year".

15.  After regulation 11 (entitlement to annual leave and payment for leave), insert-

"Entitlement to additional annual leave

11A.-(1) Subject to paragraph (4), a worker is entitled in each leave year to a period of leave in addition to the entitlement under regulation 11 ("additional leave") determined in accordance with paragraph (2) and to be paid for any such leave at the rate of a week's pay in respect of each week of leave.

(2) The period of additional leave to which a worker is entitled under paragraph (1) is-

(a)in any leave year beginning on or after the coming into force of the Merchant Shipping (Working Time: Inland Waterways) (Amendment) Regulations 2017(6), 1.6 weeks;

(b)in any leave year beginning before the coming into force of the Merchant Shipping (Working Time: Inland Waterways) (Amendment) Regulations 2017, a proportion of 1.6 weeks equivalent to the proportion of the year beginning on the date those regulations come into force which would have elapsed at the end of that leave year.

(3) In respect of a period of employment of less than one year, a worker is entitled to additional annual leave of a proportion of 1.6 weeks equal to the proportion the period of employment in question bears to one year; the proportion to be determined in days and any fraction of a day to be treated as a whole day.

(4) The aggregate entitlement provided for in paragraph (2) and regulation 11(1) is subject to a maximum of 28 days.

(5) A worker's leave year begins for the purposes of this regulation on the same date as a worker's leave year begins for the purposes of regulation 11.

(6) Regulation 11(3) to (7) shall apply as if the references to paragraph (1) of that regulation were to paragraph (1) of this regulation.".

16.-(1) Regulation 12 (entitlements under other provisions) is amended as follows.

(2) After "entitled to a rest period or annual leave" insert "(including additional annual leave)".

(3) After "in taking a rest period or" insert "any".

17.-(1) Regulation 13 (unmeasured working time) is amended as follows.

(2) In paragraph (1), for the words "Regulation 6(1) and (2) does", substitute "Regulations 6, 6A, 6B, 6C, 6D and 7C do".

(3) In paragraph (2), for the words "regulation 6(1) and (2)", substitute "regulations 6, 6A, 6B, 6C, 6D and 7C".

18.  Omit regulation 14 (other special cases) and insert-

"Emergency situations

14A.-(1) No provision of these regulations shall prevent the master from requiring a worker to perform any hours of work necessary-

(a)for the immediate safety of-

(i)the ship;

(ii)persons on board; or

(iii)cargo; or

(b)for the purpose of giving assistance to-

(i)other ships; or

(ii)persons in distress.

(2) In the circumstances described in paragraph (1), the master may require a worker to perform any hours of work necessary until the normal situation has been restored.

(3) As soon as practicable after the normal situation has been restored, the master shall ensure that any worker who has performed work in a scheduled rest period is provided with an adequate period of rest.".

19.  Omit regulation 15 (collective and workforce agreements), and insert -

"Seasonal work on passenger ships

15A.-(1) An employer may apply the provisions contained in this regulation to a worker employed on a passenger ship during the season.

(2) Where an employer applies the provisions of this regulation, working time shall not exceed-

(a)12 hours in any 24 hour period; and

(b)72 hours in any seven day period.

(3) The worker shall be credited with 0.2 rest days per working day.

(4) At least two rest days shall be granted during every period of 31 days and any remaining rest days shall be granted by agreement but must be taken within the reference period.

(5) In this regulation, "season" means a period of no more than nine consecutive months out of 12 months in which activities are tied to certain times of the year as a result of external circumstances such as weather conditions or tourist demand.".

20.  For regulation 17 (offences) substitute-

"17.-(1) An employer who fails to comply with any requirement referred to in paragraph (2) commits an offence.

(2) The requirements referred to in paragraph (1) are-

(a)regulation 6 (maximum daily working time);

(b)regulation 6A (maximum weekly working time);

(c)regulation 6B (maximum annual working time);

(d)regulation 6C(1) (maximum average weekly working time);

(e)regulation 6D (maximum average weekly working time where there are more working days than rest days);

(f)regulation 7C (length of night work);

(g)regulation 15A(2) (seasonal work on passenger ships).

(3) An employer who fails to comply with regulation 7A(1) (health assessments for night workers) commits an offence.

(4) An employer who fails to comply with regulation 7B(1) (transfer of night workers to day work) commits an offence.

(5) An employer who fails to comply with regulation 8 (pattern of work) commits an offence.

(6) An employer who fails to comply with regulation 9 (records) commits an offence.

(7) An employer who fails to comply with regulation 10B(2) (working days and rest days) commits an offence.

(8) An employer who fails to comply with regulation 16 (power to require information) commits an offence.

(9) A master who fails to comply with regulation 14A(3) (emergency situations) commits an offence.

(10) An offence under these Regulations is punishable on summary conviction-

(a)in England and Wales by a fine; or

(b)in Scotland or Northern Ireland by a fine not exceeding the statutory maximum.

(11) In any proceedings for an offence under these Regulations it is a defence for the defendant to show that all reasonable steps had been taken to ensure compliance with the Regulations."

21.-(1) Regulation 18 (remedies) is amended as follows.

(2) For paragraph (1)(a), substitute-

"(a)has refused to permit him to exercise any right he has under regulation 7(1), 7D(1), 10(1) or (3), 10A(1) or (3), 10B(3), (7) or (8), 11(1), 11A(1) or 15A(3) or (4); or".

(3) In paragraph (1)(b), after "regulation 11(1)" insert "or 11A(1)".

(4) In paragraph (5), after "regulation 11(1)" insert "or 11A(1)".

22.  In regulation 19(2)(b), for "Employnent", substitute "Employment".

23.  After regulation 19 (restriction on contracting out), insert-

"Review

19A.-(1) The Secretary of State must from time to time-

(a)carry out a review of the regulatory provision contained in these Regulations; and

(b)publish a report setting out the conclusions of the review.

(2) The first report must be published within three years of the coming into force of the Merchant Shipping (Working Time: Inland Waterways) (Amendment) Regulations 2017.

(3) Subsequent reports must be published at intervals not exceeding 5 years.

(4) Section 30(3) of the Small Business, Enterprise and Employment Act 2015(7) requires that a review carried out under this regulation must, so far as is reasonable, have regard to how Directive 2014/112/EU(8) is implemented in other member States.

(5) Section 30(4) of the Small Business, Enterprise and Employment Act 2015 requires that a report published under this regulation must, in particular–

(a)set out the objectives intended to be achieved by the regulatory provision referred to in paragraph (1)(a),

(b)assess the extent to which those objectives are achieved,

(c)assess whether those objectives remain appropriate, and

(d)if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

(6) In this regulation, "regulatory provision" has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).".

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations implement Council Directive 2014/112/EU which in turn implements the European Agreement concerning certain aspects of the organisation of working time in inland waterway transport, concluded by the European Barge Union (EBU), the European Skippers Organisation (ESO) and the European Transport Workers' Federation (ETF) ("the Agreement").

The Regulations make a number of amendments to the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 (S.I. 2003/3049 – "the 2003 Regulations").

Regulation 3 amends the definitions contained in the 2003 Regulations in accordance with Paragraph 2 of the Agreement.

Regulation 5 changes the application of the 2003 Regulations so that they apply to ships ordinarily operating in and not ordinarily going beyond the limits of UK category A-D waters (as categorised in Merchant Shipping Notice 1837(M) Amendment 1) which are not pleasure vessels. Regulations 6, 6A, 6D, 10, 10A, 10B and 15A do not apply to workers under the age of 18 because, where the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Employment of Young Persons) Regulations 1998 (S.I. 1998/2411) apply, they provide for a better level of protection for such workers.

Regulation 6 amends regulation 4(d) of the 2003 Regulations to substitute "compromise agreements" for references to "settlement agreements" in regulation 19(2)(b) and (3) in relation to Northern Ireland.

Regulation 7 omits regulation 5 of the 2003 Regulations.

Regulation 8 replaces regulation 6 of the 2003 Regulations with new provisions governing the calculation of working time. It inserts new absolute limits on maximum daily, weekly and annual working time. It also inserts limits on maximum average weekly working time.

Regulation 9 replaces regulation 7 of the 2003 Regulations with new provisions governing health assessments; the transfer of night workers to day work; the length of night work; and safety and health protection for night and shift workers.

Regulation 10 amends regulation 8 of the 2003 Regulations relating to pattern of work.

Regulation 11 adds to the record keeping requirements in regulation 9 of the 2003 Regulations. These require records to be available on board ship until the end of the reference period and to contain certain minimum information.

Regulation 12 amends regulation 10 of the 2003 Regulations relating to rest periods. Under this regulation, a worker is entitled to rest periods of 10 hours in each 24 hour period (of which at least six hours must be uninterrupted) and 84 hours in any seven day period.

Regulation 13 inserts two new provisions relating to rest breaks and working days and rest days. A worker whose daily working time exceeds six hours is entitled to a rest break of at least 20 minutes (subject to the provisions of any collective or workforce agreement). No employer can require a worker to work more than 31 days consecutively and, where a worker has worked a number of consecutive working days, they are immediately entitled to a minimum number of consecutive rest days.

Regulation 14 amends regulation 11 of the 2003 Regulations to make it clear that the entitlement to 4 weeks' annual leave is in each leave year.

Regulation 15 inserts new regulation 11A into the 2003 Regulations which entitles workers to an additional 1.6 weeks of annual leave as well as the four weeks they are entitled to under regulation 11 of those Regulations.

Regulation 16 amends regulation 12 of the 2003 Regulations relating to entitlements under other provisions.

Regulation 17 amends regulation 13 of the 2003 Regulations to disapply the requirements relating to maximum daily, weekly and annual working time together with those relating to maximum average weekly working time and length of night work to a worker whose working time is not measured or pre-determined.

Regulation 18 deals with emergency situations and allows the master of the ship to require a worker to perform any hours of work necessary where this is required for safety reasons. Once the emergency is over, a worker who has performed work during a scheduled rest period must be provided with an adequate period of rest.

Regulation 19 inserts a specific provision applying to workers who undertake seasonal work on passenger ships. Employers can elect to apply different daily and weekly working time requirements to such workers and make different arrangements for rest days compared to those which apply to other workers.

Regulation 20 provides for penalties for breach of obligations by an employer. In addition, it makes it an offence for a master to fail to provide a worker with an adequate period of rest once a normal situation has been restored where the worker has worked during a scheduled rest period as a result of an emergency situation.

Regulation 21 updates the remedies available to a worker.

Regulation 22 corrects a typographical error in regulation 19(2)(b) of the 2003 Regulations.

Regulation 23 inserts new regulation 19A into the 2003 Regulations which requires the Secretary of State to review the operation and effect of the 2003 Regulations and to publish a report within three years of the coming into force of these Regulations and at intervals not exceeding five years thereafter.

An impact assessment of the effect of these Regulations on the cost to business is published with the Explanatory Memorandum and Transposition Note alongside this instrument on www.legislation.gov.uk.

Merchant Shipping Notices are published by the Maritime and Coastguard Agency. Copies may be downloaded from the MCA's website https://www.gov.uk/government/organisations/maritime-and-coastguard-agency or by e-subscription from [email protected] with ‘Subscribe' in the subject heading, or from M-Notices Subscriptions, P.O. Box 362, Europa Park, Grays Essex RM17 9AY, tel 01375 484548, fax 01375 484556.